Cross-Border Succession in Italy: Understanding the Professio Iuris, Italian Forced Heirship, and Tax Implications
By OS Law – Private Clients Division
In recent years, Italy has become a preferred destination for international families, entrepreneurs, and retirees who decide to establish their residence in the country while maintaining assets abroad. When a foreign national dies as an Italian resident, their estate is governed by a complex framework of international private law, Italian succession rules, and cross-border tax regulations.
Understanding how these systems interact is essential to ensure that one’s estate plan reflects personal wishes while remaining compliant with applicable laws. Three key aspects require particular attention: the professio iuris (choice of law), the Italian regime of forced heirship, and the coordination of inheritance and tax rules between Italy and other jurisdictions.
1. The International Framework: EU Regulation 650/2012
The foundation of cross-border succession law in the European Union is Regulation (EU) No. 650/2012, in force since August 2015. The Regulation aims to simplify international successions by introducing a unified system to determine which country’s law applies to a person’s estate when they own property in more than one jurisdiction.
Under the Regulation, the law applicable to the entire succession is generally that of the country where the deceased had their habitual residence at the time of death. This concept looks beyond formal registration and focuses on the place where the individual’s personal and economic life was genuinely centred.
As a result, when a foreign national becomes habitually resident in Italy, Italian succession law will typically govern the entire estate by default—even if the person retains foreign citizenship.
However, the Regulation provides significant flexibility through an exception that allows a person to elect the law of their nationality: the professio iuris.
2. The Professio Iuris: Choosing the Law of One’s Nationality
The professio iuris allows any individual to determine, in their will, that the succession to their estate shall be governed by the law of their nationality—either at the time the will is made or at the time of death.
This election can dramatically affect the outcome of the succession. While Italian law is protective of family members and restricts testamentary freedom, many other legal systems grant the testator almost complete discretion over the distribution of their estate. By making a valid professio iuris, a foreign national residing in Italy can align their estate plan with the legal traditions and principles of their home country.
To be valid, the choice of law must be express and unequivocal, typically through a clause in the will stating that the estate shall be governed by “the law of [country of nationality].” Once made, the choice applies to the entire estate, regardless of where individual assets are located.
It is important to note that while the professio iuris determines which substantive law governs the succession, certain formal or procedural requirements under Italian law—such as the publication of the will or the transfer of title to Italian real estate—must still be complied with.
In essence, the professio iuris is a powerful planning tool that allows international residents in Italy to achieve unity, predictability, and flexibility in their succession, often avoiding conflicts between jurisdictions and potential disputes among heirs.
3. Italian Succession Law: The System of Forced Heirship
If no professio iuris is made, and the deceased was habitually resident in Italy, the entire estate will be governed by Italian succession law.
Italian law is built around the principle of forced heirship (successione necessaria), which guarantees specific family members—known as legittimari—a minimum reserved portion (quota di riserva) of the estate. These forced heirs include the spouse, children, and, in the absence of children, ascendants.
The proportions reserved by law depend on the family composition. For example, if the deceased leaves a spouse and two children, half of the estate must go to the children (in equal parts), one quarter must go to the spouse, and only the remaining quarter is freely disposable.
Any testamentary provisions that violate these mandatory portions may be challenged by the heirs through the azione di riduzione (action for reduction), which seeks to restore the balance of the reserved shares.
Nevertheless, Italian law offers tools that allow for strategic flexibility within the forced heirship framework. Through careful drafting, it is possible to achieve outcomes that respect the law while still reflecting the testator’s wishes. For instance, the testator can allocate the available portion and their spouse’s reserved share entirely to the spouse, consolidating their position while still satisfying the legal entitlements of the children.
A particularly useful instrument is the legacy in lieu of forced share (legato in sostituzione di legittima), which allows the testator to assign a specific asset or sum of money to a forced heir in satisfaction of their legal entitlement. If the heir accepts, they cannot later contest the will or claim further rights. This technique often simplifies administration and avoids situations of joint ownership among heirs, especially in cases involving the family home.
Finally, while the law provides mechanisms for heirs to contest the will, in practice the action for reduction is complex and often unsuccessful unless a clear and demonstrable violation exists. The burden of proof lies with the claimant, and courts tend to prioritize solutions that preserve the stability of the succession rather than undoing its structure entirely.
4. Taxation in Cross-Border Successions
Alongside legal considerations, the tax dimension of cross-border succession plays a central role in estate planning.
In Italy, inheritance tax (Imposta di Successione) applies to the worldwide estate of individuals who are resident in Italy at the time of death. Transfers to close family members are generally subject to low rates and generous exemptions. The tax is levied at 4% on inheritances received by the spouse or children, with an exemption of €1,000,000 per beneficiary. In many cases, this means that no tax is due at all.
For non-residents, the tax applies only to assets located in Italy. Where assets are also situated abroad, there may be exposure to foreign inheritance or estate taxes. Although Italy has no bilateral treaties on inheritance tax, the Italian system provides a unilateral foreign tax credit, allowing any tax paid abroad on the same asset to be deducted—within certain limits—from the Italian inheritance tax due. This mechanism substantially reduces, and often eliminates, the risk of double taxation.
Beyond inheritance tax, other fiscal aspects must be considered. Certain assets—such as pension funds, life insurance, or company shares—may generate income tax liabilities when realized or withdrawn by the beneficiary. Italian tax law generally taxes such income when received by an Italian-resident heir, even if the original asset was exempt from inheritance tax.
Consequently, estate planning for international families must be coordinated with cross-border tax advice, ensuring that the structure of the estate, the timing of asset transfers, and the distribution mechanisms all work together to minimize both inheritance and income tax exposure.
5. Conclusion: Designing a Coherent Cross-Border Estate Plan
The coexistence of European private international law, Italian succession rules, and international tax systems makes estate planning for foreign residents in Italy a highly technical but essential exercise.
The professio iuris offers a unique opportunity to simplify this complexity by allowing individuals to align their estate with the law of their nationality, often gaining greater flexibility and clarity in the process. Those who prefer to remain within the Italian legal framework can nonetheless achieve significant control through precise drafting, intelligent asset allocation, and the use of legacies in lieu of forced shares.
In both cases, the key to an effective succession plan lies in coordination—between the applicable law, the location of assets, the tax regimes involved, and the formalities required for implementation.
A carefully structured plan not only ensures that your wishes are respected but also protects your heirs from unnecessary disputes, bureaucratic delays, and tax inefficiencies.
